|Succession Cause 519 of 2000
|BENSON ANGOLO NASIBI v ROSE APWOKA & BERITA KAKAI
|14 Apr 2011
|High Court at Kakamega
|BENSON ANGOLO NASIBI v ROSE APWOKA & another  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
SUCCESSION CAUSE NO. 519 OF 2000
2. In a Summons premised on the provisions of Rules 59 (1) and 73 of the Probate and Administration Rules, the Applicants seek reinstatement of the dismissed Summons for reasons that;
i. failure to attend court was not deliberate;
iii. the advocate for the Applicants were held up at the High Court in Kisumu.
4. Another point raised was that the letter informing the Applicants of the hearing date indicated that hearing was slated for 29.9.2010 and not 21.7.2010 which was an inadvertent mistake.
6. On my part, the proceedings before me are Succession Proceedings and so ordinarily it should relate to the distribution of the deceased’s estate. The Summons for Revocation raises issues as to whether the the Applicants were entitled to the estate as daughter-in-law and widow of the deceased respectively. Justice would demand that their claim be investigated and be determined on the merits.
8. At 3 p.m. when neither Mr. Odeny nor his client appeared, I dismissed the Summons. Are the reasons given for non-attendance acceptable? In my view, yes. The Applicants have exhibited a letter dated 30.6.2010 requiring them to attend court on 21.9.2010 and not 21.7.2010 and so on the latter date, they went about their normal business until they were informed later in the day that they were required in court. They did so but arrived after the Summons had been dismissed and they then filed the present application. That conduct was consistent with diligence and failure to attend was not deliberate.
10. I shall order each party to bear its own costs.
Delivered, dated and signed at Kakamega this 14th day of April, 2011.
J U D G E